Instagram Defeats Lawsuit Claiming It Was a “Breeding Ground” for Sex Traffickers–Doe v. Backpage

June 9, 2024 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

This opinion came out in March but just showed up in my alerts. Doe claims she was sex-trafficked on Instagram. Section 230 preempts her lawsuit against Facebook: “Ninth Circuit precedent interpreting Section 230 of the Communications Decency Act, 47 U.S.C. § 230, forecloses Doe’s claim as currently pled, because she seeks to hold Meta liable for content created by her trafficker.”

To get around Section 230, Doe made two arguments: (1) Instagram is a “breeding ground” for sex trafficking, and (2) Instagram’s algorithms matched criminal with victim. The claims didn’t try to fit into the Section 230 FOSTA exception, though this case otherwise looks like a FOSTA case.

The court responds: “Doe’s breeding ground theory essentially seeks to hold Meta liable for failing to remove traffickers’ grooming messages and posts advertising their victims for sex.” Cite to Lemmon v. Snap, Barnes, Roommates, Dyroff.

The but-the-algorithms theory fares no better:

Doe advances a variant of what is essentially the same argument [as Dyroff]. She argues that Section 230 does not apply because her claims are based on Meta connecting her to a certain person, not directing her to certain content. But Doe “cannot plead around Section 230 immunity by framing” her claim as one involving Meta’s connection algorithms rather than the user-generated content that those algorithms facilitate…Doe’s entire claim is based on the content of the subsequent interaction: that, as a result of the connection, Doe’s trafficker was able to message her and post on her Instagram page, which in turn allowed him to groom Doe and eventually force her into sex trafficking…Meta did not generate the messages and posts by Doe’s trafficker, and cannot be held liable for his sex trafficking content.

(I’m not sure what’s left of the Fifth Circuit’s Doe v. MySpace ruling, but it dealt with this criminal-victim matching argument. In other words, this Doe’s arguments went straight into 15+ years of adverse precedent. This judge focused solely on Ninth Circuit precedent, which makes sense because this court is in the Ninth Circuit’s territory and that will help with any appeal).

The court dismisses the case but gives the plaintiff the chance to amend the complaint to plead failure-to-warn and negligent design–because those arguments show up in virtually every 230 case now. Wielding those arguments should help Doe get around Section 230, though the case should then fail for other reasons.

Most FOSTA opinions are lengthy, but this one was short because the law was quite clear. The plaintiff’s lawyers repackaged arguments that have failed many times before. Unsurprisingly they failed again; and they should fail on appeal too (but who knows).

Finally: in passing, the court says “Her trafficker was convicted in a criminal trial and sentenced to 40 years in prison.” No degree of carceral punishment will provide adequate justice for the victim, but the criminal did not escape the justice system we have.

Case Citation: Doe (K.B.) v. Backpage.com, LLC, 2024 WL 2853969 (N.D. Cal. March 20, 2024)

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Instagram Defeats Lawsuit Claiming It Was a “Breeding Ground” for Sex Traffickers–Doe v. Backpage

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